Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights

Abstract: Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.

The Road from Rome: The Developing Law of Crimes Against Humanity

Abstract: This article represents one of the first comprehensive efforts to elucidate the elements of crimes against humanity. Written in the immediate aftermath of the adoption of the Rome Statute of the ICC, the article identifies startling doctrinal ambiguities in the definition of these crimes. With prosecutions for crimes against humanity underway before two ad hoc international criminal courts and the prospect of many more such trials before the permanent ICC, the dictates of the principle of legality lent urgency to the task of defining these crimes. Furthermore, the chapeau elements of crime against humanity provide the normative basis for international jurisdiction over such crimes. The elaboration of these elements therefore clarifies the circumstances under which international courts may legitimately exercise jurisdiction over crimes that would otherwise fall within the exclusive purview of sovereign States. This article presents legal and normative arguments for a simplified definition of crimes against humanity requiring merely that the constitutive acts be committed with knowledge that they are part of a widespread or systematic attack against civilians. Additional elements included in some articulations of the definition of crimes against humanity are rejected, including the requirements of a nexus to armed conflict and discriminatory intent. The article focuses particular attention on the much-neglected mens real element of crimes against humanity, arguing against the specific intent standard espoused in some of the jurisprudence in favor of a knowledge requirement. A number of the arguments advanced in this article have been adopted in subsequent case law, and the chapeau in the statute of the Special Court for Sierra Leone reflects the definition proposed herein.

Statutory Interpretation and the Balance of Power in the Administrative State

Abstract: For those who study the interaction of courts and agencies, one of the most persistently intriguing puzzles has been to define the appropriate judicial and administrative roles in the interpretation of regulatory statutes.2 Assume, for example, that Congress enacts legislation which establishes a system of rights and responsibilities for "employees" and creates an agency to administer that system. Should the court or the agency decide whether the critical statutory term "employees" encompasses persons who would be considered independent contractors under the common law, or workers who are foremen and so, at least arguably, part of management?3 To determine "what the law is" in the context of an actual controversy that turns on a question of statutory meaning is the quintessential judicial function.4 At the same time,

Natural Law and Legal Reasoning

Abstract: Legal reasoning is, broadly speaking, practical reasoning. Practical reasoning moves from reasons for action to choices guided by those reasons. A natural law theory is nothing other than a theory of good reasons for choice. The law seeks to provide sources of reasoning—statutes and statute-based rules, common law rules, and customs—capable of ranking alternative resolutions as or wrong, and thus better and worse. Lawyers' tools of trade—their ability to find and use the authoritative sources—are means in the service of a purpose sufficiently definite to constitute a technique, a mode of technical reasoning. Legal reasoning, indeed, is technical reasoning, at least in large part—not moral reasoning. Like all technical reasoning, it is concerned to achieve a particular purpose, a definite state of affairs which can be achieved by efficient disposition of means to end.

Efficiency in Western Water Law: The Development of the California Doctrine, 1850–1911

Abstract: The development of water law in California has been heavily studied by legal historians. Much interest and controversy has surrounded the fact that early on, California adopted a system of water law that recognizes both riparian and appropriative rights and that persists to this day. How well this hybrid system has promoted economic efficiency in the use of water in California has been poorly understood. This article examines the early development of California water law to understand how such a hybrid system emerged and how well it promoted economic growth. The key argument is that nineteenth‐century California jurists, though constrained by legislative mandates to observe English common law, worked within the confines of that doctrine to mitigate some of its potential inefficiencies. This article provides empirical evidence that those jurists selectively promoted appropriative claims in situations of high transactions costs in order to encourage reallocation of water from existing riparian uses.